Defendant
Jessica Marie Walsh ("Walsh")-who is charged with
the offense of possession of fifteen or more counterfeit
access devices, in violation of 18 U.S.C. §
1029(a)(3)-moves to suppress all evidence-including
contraband and photographs seized in connection with the
search of the vehicle Walsh was driving and statements of
Walsh. Following an evidentiary hearing, and for the reasons
that follow, [1] the court denies the motion.

I

On
February 8, 2017 Deputy Joel Skinner ("Deputy
Skinner") of the Gray County, Texas Sheriffs Office was
patrolling Interstate Highway 40 in Gray County. Deputy
Skinner has been a law enforcement officer for the Gray
County Sheriffs Office for eight years, and has been a canine
handler since May 2014. On the date of the stop, Deputy
Skinner was operating a canine unit with his canine, Lewigi.

Deputy
Skinner has been working with Lewigi, a Belgian Malinois,
since 2014. He trains monthly with Lewigi, either in Amarillo
or with other Gray County Sheriffs Office canine handlers.
Deputy Skinner also has approximately ten years'
experience training drug-detecting dogs and their handlers
with his father Jim Skinner, who is also a Gray County
Sheriffs Office canine officer.

Lewigi
was initially trained by AMK9, a private security firm in
Alabama. He is trained to detect marihuana, cocaine, heroin,
and methamphetamine. In addition to narcotics detection,
Lewigi is also trained as a patrol dog, which means he may be
used for apprehensions and building searches. Before he was
donated to the Gray County Sheriffs Office, Lewigi worked for
AMK9 in Afghanistan. Lewigi was four years old when he began
working with Deputy Skinner. Lewigi is trained to respond to
commands in Dutch.

In
March 2016 Lewigi was certified by both the National Narcotic
Detector Dog Association ("NNDDA") and the National
Police Canine Association ("NPCA"), and he was
certified again by both organizations in March 2017 (the
month after Walsh's stop). The NNDDA certifications
consist of building searches, and the NPCA certifications use
both buildings and vehicles. Each certification required
Lewigi to perform in a controlled environment using
single-blind controls, i.e., tests in which the handler does
not know where drugs are hidden. The NPCA certification also
uses some scenarios in which no drugs are present, to test
the canine's reaction to the lack of a trained odor.
Lewigi has never failed a certification, and has never given
a false alert (i.e., given a final response to an area
lacking any trained odors) during certification testing. In
training activities outside of certification, Lewigi has
given only one false alert out of 798 exercises.

Lewigi
also has a history of reliability in the field. Deputy
Skinner documented Lewigi's performance during training
and deployments from 2014 to June 2017, with the exception of
a two- or three-month period that was lost in a transition
between recordkeeping systems. According to these records,
Deputy Skinner has deployed Lewigi in the field to conduct a
free-air sniff 173 times, and Lewigi alerted 84 times. Of
these 84 alerts, 75 were substantiated by the finding of
drugs, and 80 were substantiated either by the finding of
drugs or something else, such as a noticeable smell or
residue of marihuana.

Lewigi
is a passive alert dog, which means that his trained final
response to detecting the odor of certain drugs is to sit.
Lewigi also exhibits other odor responses to detecting drugs,
such as changing his breathing and his body posture. More
specifically, he closes his mouth, takes shorter deeper
breaths, pins his ears back, and "detail searches"
(sticks his nose closer to an area, such as a door seam).
Deputy Skinner has observed Lewigi exhibiting these responses
during the approximately three years they have worked
together.

When
Lewigi conducts a free-air sniff, Deputy Skinner and Lewigi
typically utilize a "reverse search pattern, " in
which they begin at the driver's side headlight, move
back along the driver's side of the car and around the
trunk to the passenger's side taillight, then change
direction and make a full clockwise circle of the car, and,
finally, when back at the trunk, change direction again and
search counterclockwise up the passenger side to the hood.
During the first pass of an area, Deputy Skinner typically
allows Lewigi to freely search, without much direction from
his handler; during subsequent passes, Deputy Skinner directs
Lewigi to search certain areas. According to Deputy
Skinner's testimony, when Lewigi shows noticeable odor
responses, he typically also comes to final alert.

On
February 8, 2017 Deputy Skinner stopped Walsh's vehicle
for following a semi truck too closely. After making initial
inquiries that aroused his suspicion that Walsh was involved
in criminal activity, Deputy Skinner requested Walsh's
consent to search her car. After Walsh refused to give
consent, Deputy Skinner asked for Walsh's consent for his
dog to do a free-air sniff of the car, and Walsh agreed.

Deputy
Skinner retrieved Lewigi from his patrol car. Deputy Skinner
and Lewigi began to search from the front driver's side
toward the rear driver's side. When they rounded the
car's trunk, Lewigi barked and jumped his front paws onto
the trunk. Deputy Skinner testified that he interpreted both
of these behaviors, in addition to Lewigi's continued
attention on the trunk around the license plate area (instead
of continuing with the search pattern), as responses to
trained odors. Deputy Skinner put his hand on the car's
trunk and said "back, " and "search
again." Lewigi continued to sniff around the license
plate area. Deputy Skinner interpreted this as a detail
search focused on the openings near the rear license plate
and lights.

Deputy
Skinner and Lewigi resumed searching in a clockwise direction
around the car, and made their way to the passenger side.
When they reached the trunk a second time, Lewigi jumped
toward it again, similar to the first time. This time, Deputy
Skinner noticed that Lewigi took shorter breaths, put his
ears back, and again detailed the area around the license
plate. Finally, Lewigi came to a near-sitting position.

At the
same time that Lewigi was going into a sitting position,
Deputy Skinner said something out loud. Deputy Skinner
testified at the hearing that he said "what?" He
explained that this remark was not a command to sit, and that
Lewigi's command to sit is a two-syllable Dutch word that
is pronounced "sit-ay." Deputy Skinner admitted
that it was a mistake to speak at the same time that Lewigi
was signaling his final alert. But he also testified that he
had talked to Lewigi in a similar way during training
exercises. After Lewigi stopped and ...

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